• The Fourth Circuit oral argument in the exchange litigation

    Remember Halbig, the D.C. Circuit case challenging the IRS rule extending tax credits to those purchasing health plans on federally facilitated exchanges? It’s not the only pending case that raises the question. On Wednesday, the Fourth Circuit heard oral argument in King v. Sebelius, which is basically a carbon copy of Halbig. (For more, see Kevin’s post on King and my prior posts on Halbig.)

    A recording of Wednesday’s oral argument was just posted online. From a quick listen, the argument went well for the government. Two of the three judges—Davis and Gregory—evinced skepticism that the ACA could be read to deprive tax credits to people who happened to live in a state that didn’t establish its own exchange. (The third, Judge Thacker, was mostly quiet.) The government’s lawyer was largely given a pass.

    The high point of the argument came when Judge Davis challenged the plaintiffs’ lawyer with the following: “You want us to adopt an interpretation of this reticulated statute and kick millions of people in five states … off the insurance rolls, so that the four people you represent here don’t have to pay a few dollars extra for insurance. That’s what this case comes down to.” It’s risky to hazard a prediction about the outcome of a case based on oral argument alone, but the government had to be happy with that statement.


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